Introduction

[1] The plaintiff brings this motion to strike the defendant’s statement of defence and counterclaim on the basis that they disclose no reasonable defence and cause of action, and to obtain a judgment for possession of the property under the terms of a mortgage dated January 11, 2019 registered as instrument number RC129901.

[2] The plaintiff entered into a line of credit agreement with the defendant. Default occurred and the plaintiff brought an action to recover amounts owing under the line of credit agreement. The defendant did not defend this action and a default judgment was granted on March 21, 2018, ordering the defendant to pay to the plaintiff $152,273.43 plus costs of $1,130 and post-judgment interest.

[3] To execute on its judgment, the plaintiff filed a writ of seizure and sale, and the sheriff gave notice to the defendant that it intended to sell the property. The parties negotiated a forbearance agreement under which the plaintiff agreed not to require the sheriff to sell the property and the defendant agreed to execute and register a mortgage against the property. The defendant retained a lawyer and on January 11, 2019, the defendant’s lawyer registered a mortgage against title to the property. This mortgage secured payment of $174,871.41, which was the amount then owing under the above noted default judgment plus interest and costs.

[4] The plaintiff alleges that the defendant failed to fulfill all the salient terms of the forbearance agreement and in January 2019, the plaintiff gave notice to the defendant of outstanding items under the forbearance agreement. The plaintiff alleges that the defendant failed to fulfill the forbearance agreement. The plaintiff gave notice of default to the defendant and thereafter accelerated payment of all amounts owing under the mortgage. It is alleged that the defendant failed to pay any amount to the plaintiff. Notice of sale under the mortgage was given to interested persons and this action was started in May 2019 for possession of the property. A statement of defence and counterclaim was served in June 2019, and a reply in early July 2019.

[5] The plaintiff argues that the statement of defence and counterclaim do not disclose a reasonable defence and cause of action, and it argues that the defendant is raising arguments meant to delay and obfuscate, which have been described in earlier decisions as “Freemen on the Land” arguments.

[6] In his statement of defence, the defendant argues that he does not owe any money to the plaintiff, that default has not occurred and that the mortgage is invalid. The defendant argues many points including that a pure trust exists, namely The Humanum Trust Foundation, that notice of this trust was served on the offices of the Prime Minister of Canada, the Governor General of Canada, the Premier of Ontario and the Lieutenant Governor of Ontario, that he is the managing director or this trust, and that it pre-dates and supersedes any transaction with the plaintiff. He also argues that the plaintiff never lent him any money, that it only made a ledger or a digit entry and that no actual cash was lent. He argues as well that he has Metis lineage, that he is a member of the Kinakwii Non-Status Nation and that they have filed a land claim for trespass on the property which he is claiming as historically belonging to his Nation. He seeks production of the original mortgage, a true copy of the British North America Act, 1867, and seeks to claim back the property. He also seeks a stay of this action until his land claim is resolved, and $2,000,000 as emotional damage for trespass to the property.

Analysis

[7] This motion is brought under rules 21.01 (1) (b) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194.

[8] The test to be applied on a rule 21 motion is whether it is plain and obvious that the statement of defence discloses no reasonable defence or that it has no reasonable prospect of success. The court is to assume the facts alleged in the pleading as true, unless they are patently ridiculous or manifestly incapable of proof.

[9] A pleading that is irrelevant, argumentative or that contains bare allegations may be struck under rule 25.11. Leave to file an amended pleading may not be allowed where to do so would likely result in another proceeding to strike the amendment as frivolous, vexatious or an abuse of process.

[10] The difficulty for the plaintiff with this motion is either that it has brought the wrong motion or that it seems to treat this motion as a motion for summary judgment. Under rule 21.01(1)(b), the facts in the pleading must be taken as true, unless patently ridiculous or manifestly incapable of being proven. The test remains whether it is plain and obvious that the claim or defence has no reasonable prospect of success, and although the purpose of the rule is to eliminate hopeless claims, it should be used with care.

[11] At paragraph 6 of the statement of claim, the plaintiff alleges that default occurred under the mortgage on or before February 14, 2019, and at paragraph 8, that default has not been rectified. However, at paragraph 6 of the statement of defence, the defendant alleges that default has not occurred under the mortgage. Alleging that default has not occurred or refuting default of the forbearance agreement is not, in the absence of evidence, something that is patently ridiculous or manifestly incapable of being proven.

[12] Similarly, the defendant also alleges that the mortgage is unenforceable and relies, in support of that plea, on the existence of a trust, on the absence of consideration, and on the existence of a land claim. Although I have reservations about the soundness of these arguments, in the absence of evidence, I cannot conclude that it is plain and obvious that none of these defences has any reasonable prospect of success.

[13] The plaintiff argues that all of the defendant’s arguments should be rejected as ridiculous or incapable of being proven because they bear similarity to arguments often raised in “Freemen on the Land” cases. However, that is not the test to be applied on such a motion. Rather, it is whether it is plain and obvious that the statement of defence discloses no reasonable defence and each pleading is to be considered on its own.

[14] The plaintiff’s argument that the statement of defence and counterclaim be struck under rule 25.11 without leave to amend is also not made out because, in the absence of evidence, the statement of defence and counterclaim is not scandalous, frivolous or vexatious, nor is it an abuse of the process of the court. As well, it would serve no useful purpose to embark upon that pleading exercise when what is probably required to deal with this case fairly is a motion for summary judgment.

[15] The plaintiff’s motion is therefore dismissed.

[16] If the parties are unable to agree on the issue of costs of this motion, they shall file brief submissions in accordance with what follows:

• The defendant’s costs submissions shall be filed by February 1, 2021;

• The plaintiff’s costs submissions shall be filed by February 8, 2021;

• Any reply costs submissions by the defendant shall be filed by February 12, 2021;

• The party’s respective submissions on costs shall not exceed five pages and shall not include more than five enclosures. Submissions that do not comply shall not be accepted by court staff.

[17] If costs submissions are not received by February 12, 2021, then the costs disposition for this motion shall be no costs for this motion.

Mr. Justice Pierre E. Roger

Released: December 30, 2020

COURT FILE NO.: CV-19-80191

DATE: 20201230

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: NATIONAL BANK OF CANADA, Plaintiff

AND

MARCEL GUIBORD, Defendant

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: Michael S. Myers for the Plaintiff

Marcel Guibord, self-represented

ENDORSEMENT

Roger J.

Released: December 30, 2020

National Bank of Canada v. Guibord, 2020 ONSC 8137

Case Summary

Introduction

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues